Anshul Arya vs Rakesh Chhabra And Anr.
2014 Latest Caselaw 3228 Del

$~21.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 411/2013
      ANSHUL ARYA                                     ..... Plaintiff
                         Through :   Mr.Virendera S. Chaudhry and
                                     Mr.Anand Verdhan Maitrya, Advs.

                         versus

      RAKESH CHHABRA AND ANR                     ..... Defendants
                    Through : Mr.Alok Sinha, Adv. for defendant no.1.
                              Defendant no.2 in person.
                              Mr.Rajiv Vig, Adv. for defendant no.3.

      CORAM:
          HON'BLE MR. JUSTICE G.S.SISTANI

                  ORDER

% 21.07.2014

1. Plaintiff has filed the present suit for declaration, recovery of

possession, damages for illegal occupation/mesne profits and

permanent injunction with respect to the Flat bearing no.42, 3rd floor,

Antariksha Apartment, Vikas Puri, New Delhi (hereinafter referred to

as the 'suit property'.

2. Office is directed to place the amended plaint along with amended

memo of parties in Part 1 of the file.

3. Learned counsel for the plaintiff prays that a decree may be passed

against defendant no.1 under Order VIII Rule 10 CPC as after service

the defendants had sought time to file the written statement,

however, no written statement has been filed by defendant no.1. It

is further submitted that right to file written statement of defendant

no.1 was closed on 30.5.2014 and the defendant has failed to take

any steps for recall of the order so passed.

4. Learned counsel appearing on behalf of defendant no.1 submits that

he has recently been engaged in the matter and prays that the

matter should be adjourned to enable him to take appropriate steps

in the matter.

5. The prayer for adjournment is opposed by learned counsel for the

plaintiff on the ground that defendant no.1 is illegally occupying the

suit property, no rent/mesne profits has been paid by defendant no.1

for the past eight years and moreover the suit for specific

performance filed by defendant no.1 against defendant no.2 stands

dismissed on 19.1.2013.

6. Having regard to the fact that despite opportunities having been

granted to the defendant No.1 to file the written statement and also

having regard to the fact that right to file written statement was

closed in the month of May, 2014, the defendant No.1 has not even

bothered to seek recall. I find no ground to grant adjournment to

counsel for defendant No.1.

7. As per the plaint the plaintiff purchased the suit property from its

erstwhile owner Mohinder Kumar on 01.04.2008 vide registered sale

deed registered with the office of the Sub Registrar-II, Janakpuri vide

registration No.7452 in Book No.1 Volume-15864 at pages 93-100.

Further as per the plaint, at the time when the agreement to sell was

entered into between the plaintiff and Mohinder Kumar on

13.09.2006 the defendant was in occupation and possession of the

suit property as a tenant of Mohinder Kumar at a monthly rent of Rs.6,500/-. Counsel submits that on 13.09.2006 at the time of

signing of the agreement to sell between the plaintiff and Mohinder

Kumar, the defendant had promised Mohinder Kumar in the

presence of the plaintiff that he would vacate the suit property on or

before 31.10.2006. Similar assurance was rendered to the plaintiff

as well. An averment has also been made in the plaint that prior to

13.09.2006 the defendant had unsuccessfully tried to purchase the

suit property from Mohinder Kumar but as defendant could not

arrange finances on time the agreement was cancelled and earnest

money was forfeited by Mohinder Kumar. The defendant did not

keep his promise of vacating the suit property and instead, on

20.10.2006, he filed a civil suit against Mohinder Kumar for specific

performance of the contract, declaration and permanent injunction

on the basis of forged and fabricated documents. On 16.11.2007

the defendant also impleaded the plaintiff as one of the defendants

in the said suit. The application filed by the defendant in the said

suit for injunction was dismissed on 27.11.2006. After the dismissal

of the application, Mohinder Kumar executed the sale deed in favour

of the plaintiff on 01.04.2008. The plaintiff asked the defendant to

vacate the property but the defendant refused to do so. The suit

filed by the defendant for specific performance against Mohinder

Kumar and the present plaintiff stands dismissed on 19.01.2013.

Counsel submits that plaintiff called upon the defendant to vacate

the property by means of legal notice dated 29.01.2013. The plaintiff also demanded mesne profits @Rs.2,000/- per day. Copies

of the notice, original speed post receipts and delivery receipts have

been placed on record. Counsel in these circumstances prays that

the present suit be decreed under Order VIII Rule 10 CPC. Counsel

submits that he has claimed mesne profits @Rs.2,000/- per day from

01.04.2008 but he restricts his claim for mesne profits for the last

three years. He submits that the Court can take judicial notice of

the fact that rates of rent have increased.

8. I have heard the learned counsel for the plaintiff. Despite service

the defendant No.1 did not file written statement. Right of

defendant No.1 to file written statement was closed on 30.05.2014.

The defendant No.1 has not bothered to either file the written

statement or take appropriate steps in the matter till date.

Defendant No.2 has admitted the case of the plaintiff. Counsel for

defendant No.3 submits that in case an application is made for

transfer of the flat the same shall be considered in accordance with

law and expeditiously. In the absence of any written statement the

present suit is decreed in favour of the plaintiff and against the

defendant No.1 in terms of prayer of the plaintiff. There is force in

the submission of counsel for the plaintiff that this Court can take

judicial notice of increase in rents in Delhi. Although legal notice was

issued on 01.04.2008 the plaintiff would be entitled to mesne profits

at the rate of the last paid rent i.e.Rs.6,500/- p.m. plus increase of

15% on the increased amount every year.

I.A.18493/2013

9. Office is directed to scrutinise the case of the plaintiff and in case if

it is found that there is excess fee filed by plaintiff, the same shall be

returned to the plaintiff.

10. Application stands disposed of.

I.A.3508/2013 (O 39 R 1 & 2 CPC)

11. Application stands disposed of in view of the Order passed in the

suit.

I.A.13050/2014 (Delay in filing WS by defendant no.3)

12. Application stands dismissed in view of the order passed in the suit.

G.S.SISTANI, J JULY 21, 2014 Msr/pdf